Closing Arguments - August 29, 2005

Written by P. Espinoza

Today defendant Jose Merel's attorney, DuBois, finished his closing arguments via a Power Point presentation in which he presented the jury with a barrage of legal definitions, including but not limited to, how a witness can be willfully false, and, what "the heat of passion" is, what voluntary and involuntary manslaughter is, and what constitutes "assault". His main argument was that everything that Jaron Nabors said about Jose Merel's involvement in the beating and the murder were complete fabrications, "Jaronisms" as he put it.

He included how the testimony of an accomplice (meaning Nabors) should not be taken at face value, that it must be corroborated by other evidence. He especially went into testimony from Nabors about the significance of the "Dee Dee" letter, a letter that Nabors had written to his girlfriend that made its way into the hands of the DA. In it Nabors had written his account of what happened, and wanted his girlfriend to know he was not a murderer. DuBois basically said that this letter was written as a way of making himself (Nabors) look innocent. He went on to assert that accomplices are self-serving, and that the jury should view Jaron Nabors with caution, because "accomplices" tend to lie. This does however beg the question of what, exactly, Mr. Nabors was an "accomplice" to, doesn't it?

As any defense lawyer would do, DuBois went over the role of the can of food and the frying pan that Merel used during the commission of the beating. DuBois points to his assertion that there was no can found in the house that was bent as Jaron Nabors had described when it was used to beat Gwen Araujo over the head. He also said there was no frying pan in the house that fit the description given by Nabors. Basically his point was that with these facts, coupled with the failed experiments conducted with other cans of food to try and duplicate the bending or denting of the can, it was impossible that Jose Merel beat Gwen with any can of food, and that by the way, the body showed no evidence of any wounds consistent with a can being used, but there were other wounds on the head of the victim.

Another interesting item in the power point presentation was the use of "Thug Algibra" (this was interesting, and rather classist and racist in my opinion). This "thug algibra" DuBois brought up as a way to illustrate his point went something like this:

A= letter to DeeDee
B= Testimony at trial
T= the Truth

If A=B, and B=T, then A=T

DuBois' basic point was that the DA believed Nabors, and that Nabors knew they would believe him, because they just wanted him to tell the truth.

DuBois went on to then describe Nabors further as a compulsive liar, who was known to make up fantastic stories in an attempt to pass himself off as a tough guy. He further stated that because Jaron Nabors had not had sexual relations with Lida, that he didn't have a "heat of passion" defense, therefore he was a cold-blooded killer.

He also went into how one is supposed to tell when Jaron Nabors is telling the truth, and when he's lying. For the purposes of this trial, the DA is asking the jury to believe either Jaron Nabors or Jose Merel (interesting!). DuBois asserts that Nabors was motivated to lie because of fear that Jose Merel would testify against him, thus needing to conceal his true involvement, and that this is consistent with the letter to DeeDee.

DuBois went on to state that Jose Merel cared for Lida (Gwen), and just wanted her out of the house once her anatomy was displayed. He didn't ever imagine killing her, yet DuBois asserts that his client was menacing with the can of food (never actually striking Gwen) and that the blow he struck with the frying pan was a "glancing" blow, that it did not do any damage. With this he led the jury into definitions of what aiding and abetting a crime is, and that they would have to consider Jose Merel's involvement to be simply an assault, because there was no premeditation, no knowledge or malice aforethought on his part toward murdering her; he simply became wrapped up in a sequence of events that ended in the foursome burying the body in the Sierra foothills; that aiding and abetting or assisting on its own is not criminal.

At one point DuBois did an imitation of what Jose probably sounded like when he was drunk the night of the murder, as they all sat around the kitchen table playing dominoes and he decided to ask Lida if she was a man or a woman. With this slurred speech imitation, he hoped the jury would see that Jose was voluntarily intoxicated and that he was not in the mental state required to consider his actions manslaughter, voluntary or involuntary.

Toward the end of his closing DuBois went into the issue of "Special Findings" that would be required to make this a hate crime. He asserted that this was not a hate crime because Jose Merel did not act personally, with intent to kill... that perhaps he may be an aider & abettor, but that since he didn't act with knowledge or intent to kill, this brought it down to the core differences between his client and the other defendants. He asked how you can compare a can of food and a frying pan used by his client, to a rope, a weight, and a shovel that were used by the other accused men? He simply finished up with a reminder to the jury that Jose Merel had asked "why did she have to die?".

After the lunch break Michael Magidson's attorney, Thorman, made his closing arguments. He started off by informing the jury that he has found it to be an honor to represent Magidson, and that he has found it a privilege to get to know Magidson and his family. He went on to compliment the jury on what a great job they had done of paying attention despite the boring, repetitive nature of the trial, and that he was impressed by them, saying they were the most attentive jury he has ever witnessed.

His next step was to point to ADA Lamiero's descriptions of his client Michael as not accurate. That his intention was to dehumanize his client, to paint him as a pathetic, weak person. He went on to ask the jury to remember each of the character witnesses he brought forth to testify on Magidson's behalf, about what a great, caring person he is, and especially pointing out a witness that came to testify from the Castro District of San Francisco, saying how nice Magidson is and that he would not consider him homophobic (hello! Gwen was not a gay man!) and that he would even have him as a roommate. Thorman went on to say how Magidson was always polite to Lida and that the events described were "out of character" for Magidson.

Thorman went on to say that DA Lamiero's opening statement was a point-by-point account of Jaron Nabors' testimony about Merel using a weight, a can of food, a frying pan to hit Lida, and that he had said he wanted to kick her again, while saying things like "She's not leaving" and "If that's a man I'm gonna kill him". Thorman was making a point that Jaron & Jose's testimony was contradicting each other, and that you couldn't believe both; he said that this is what the ADA was asking the jury to do, to believe both.

One of the many things that Thorman asserted that were pretty strong statements was that Nicole Brown helped create the turmoil that night, and that she was just as motivated to keep herself out of the picture, even though in her taped interview with the police, she had made statements like "I have been a victim of domestic violence & I'll be damned if I'm gonna let a man hit me again" (referring to the fist-fight she had with Lida). He described Nicole as having had an emotional reaction to Lida deceiving everyone and fighting with her, a guy beating on a girl.

Thorman went on to say how many of the points made by Nicole were physically impossible, such as her stating that she had seen Lida on the couch when she came back, two feet into the house, looking for Paul Merel so they could leave. The couch was not visible from that part of the house. He wanted the jury to understand that everyone in that house was set off when Lida's genitalia was forcibly exposed, and that they all played roles in what happened that night, and therefore they all have motivations to remove themselves from culpability.

Thorman also made a point that Jaron Nabors' testifying that they went to get shovels while Lida was still alive is untrue. (But, well, isn't everyone that was there that night motivated to remove themselves from culpability?) He also wanted to know if anyone would believe that Jason Cazares' attitude went from 'peace-maker' to "let's go get shovels" in a matter of minutes? This proves that Nabors cannot be believed. He also asserted that Nabors' testimony contradicts the entire timeline of events. As an example, he said that since blood was not found on the portion of the wall where Lida's head had hit as it snapped back from being knee'd in the face by Magidson, this proves that Nabors lied about when Lida was bleeding and when she was not.

To try and wrap up his argument, Thorman was adamant about trying to paint the victim as a person with no boundaries... she was a person with reckless sexuality, was a substance abuser... and that she forced herself onto Magidson and Merel and basically raped them. That she had put her mouth on Magidson's penis to convince him that she was a girl. He wants the jury to believe that she was culpable for what happened to her (blame the victim... again!). He even went into how Detective Lavano, who interviewed Magidson after his arrest, had basically agreed with the notion that "anybody would understand the anger and the rage one would feel if they discovered that the person they were physically intimate with had lied about their true gender" (this was very sad to hear that a police detective would speak this way to a suspect... in order to get him to talk?)

Thorman told the jury how Magidson had basically said that his mind went blank when he realized that Lida was biologically male, that his experience of having had anal sex with Lida was gross to begin with, even before he knew her gender status, and that this together with seeing his friend Jose Merel having a 'nervous break-down' made him react.

By the end of his arguments, Thorman pointed to several instances in which things in the trial didn't make sense if this was actually a premeditated, malicious killing... for instance the issue of why Magidson would have used such a long piece of rope to strangle Lida? He had Jaron Nabors' knife... why not cut a more manageable piece with which to proceed and strangle her? Why was Nabors' pager in the garage if he had testified that he did not spend any substantial amount of time in the garage?

Thorman also brought in multiple legal definitions to remind the jury of how they must proceed to make decisions about whether this was murder or manslaughter, and that the additional accusation of kidnapping must also be weighed carefully, since, according to Thorman, it was not a significant distance from the hallway and living room where they took turns beating the victim, into the garage where it is believed she was actually killed.

Thorman wants the jury to believe that Magidson did what he did in a "heat of passion" as well, since he had had anal sex with Lida. He wants the jury to conclude that any ordinarily reasonable person would have reacted the same way had this happened to them, because that is what is required to label this a "heat of passion" crime and thus not premeditated with malicious aforethought... because that would mean that his client had an intent to kill with a conscious disregard for another person's life.

Tomorrow the ADA will have his final rebuttal, then it will be handed over to the jury with instructions so they can begin deliberating. Then we wait for a verdict...